Hill v. State

783 S.W.2d 501, 1990 Mo. App. LEXIS 183, 1990 WL 6269

• Court: Missouri Court of Appeals
• Decided: January 30, 1990
• Docket: No. 16364
• Status: Published

Opinion

PER CURIAM.

Movant Larry E. Hill appeals from the trial court’s denial, after evidentiary hearing, of his Rule 24.035¹ motion seeking to vacate a judgment and sentence pronounced by that court on July 28, 1986. The judgment was entered pursuant to a plea of guilty. The sentence was executed on May 20, 1987, after movant’s probation had been revoked.

The instant motion was filed on January 5, 1989, and was untimely. Movant had not filed a prior motion under Rule 27.26. Accordingly, the deadline for filing the instant motion was “on or before June 30, 1988,” Rule 24.035(2), because the sentence was pronounced prior to January 1, 1988.

The time limitations contained in Rule 24.035 are valid and mandatory. Day v. State, 770 S.W.2d 692, 695[1] (Mo. banc 1989). The failure of movant to file a motion on or before June 30, 1988, “constituted a complete waiver of the right to proceed under [Rule 24.035].” Id. at 696[2]. See also White v. State, 779 S.W.2d 571 (Mo. banc 1989).

Although the trial court heard the motion on the merits and denied it, its correct course would have been to enter an order of dismissal. Pursuant to Rule 84.14, this court hereby sets aside the order of the trial court and, in lieu thereof, enters the following order: “This proceeding is dismissed for the reason that it was not filed within the time limit prescribed by Rule 24.035(1), V.A.M.R.”

As so amended, the judgment is affirmed.

All concur.

1 . All references to rules are to Missouri Rules of Court, V.A.M.R.